Health care logic

Andrew Koppelman

One of the most fundamental problems with the constitutional case against the health care mandate is a persistent uncertainty about the coherence of the major premise. Jason Mazzone’s recent post, for example, seems to be predicated on the notion that the Constitution is violated whenever Congress does anything unprecedented. If this preposterous premise were accepted, it would follow that all of the actions of the First Congress were unconstitutional.

Attacks on the mandate frequently violate basic rules of logic in this way. Another logical difficulty is presented by the very common conjunction of the following arguments – a conjunction that is perhaps the most common constitutional objection:

1. There must be some limit on Congress' powers.

2. In order to provide such a limit, we must adopt the activity/inactivity distinction: Congress cannot regulate inactivity, such as the decision to go without health insurance.

3. United States v. Lopez (1995), which struck down a federal law banning handguns near schools because it exceeded the commerce power, was rightly decided.

If 3 is true, then 2 cannot be. Lopez did not turn on the activity/inactivity distinction. Possession of handguns near schools is an activity. Yet those who make claim 2 often cite claim 3 as supporting evidence. I have not yet encountered a single person who embraces 2 but denies 3.

The problem is not one of differing interpretations of the Constitution, or of precedent, or of history, or of wise policy. It is rather one of arguments whose premises logically contradict each other. (I’ve noticed this before, with specific reference to Judge Vinson’s opinion invalidating the mandate, here.)

Perhaps the idea that there are rules of logic and that arguments must conform to them is also a left-wing idea one must repudiate in order to show that one is a loyal and reliable conservative.
Posted 6:15 PM by Andrew Koppelman [link]